Filming began at the end of May for the movie Winnie, a biopic about the life of Winnie Madikizela-Mandela, ex-wife of former South African president Nelson Mandela, with Jennifer Hudson in the starring role and Terrence Howard as Nelson Mandela. But these days, what director could start the cameras rolling without a demand letter already in hand? Lucky for Darrell Roodt (and for entertainment law bloggers everywhere), Madikezela-Mandela’s lawyers stepped in, threatening legal action because she “would like to see the script and approve.” Roodt, for his part, vowed to move ahead with filming on schedule, saying that “[t]he film will be made based on a screenplay that was well researched and without any interference, without any influence from any of the main characters.” Which is essentially a polite way of saying buzz off.

Can the filmmakers forge ahead without Madikezela-Mandela’s approval and without acquiring her “life story rights”? The short answer is yes — if they’re willing to take the risk of winding up in a lawsuit (of course, “yes, if you’re willing to get sued” is the answer to just about any question about what you can and can’t do in this business). In theory, the First Amendment gives any aspiring filmmaker the right to make a movie about any living person, so long as it doesn’t defame the person or violate her privacy rights. But in reality, it can be hard to avoid violating rights and even harder to avoid getting sued, even if you in fact did nothing wrong.

As my colleagues wrote recently in companion blog Legal Ease, “There is really no such thing as life story rights.” Instead, “when you buy life story rights, what you really ‘buy’ is a promise from the subject of your story that they will not sue you for defamation or any number of other possible violations of their privacy.” Paying upfront to avoid a lawsuit down the road may be a worthwhile insurance policy, since even if a filmmaker prevails against the subject of the movie in the end, any victory will likely be very expensive and — perhaps most devastating — may delay the release of the movie for months or years while the case is litigated. Deals for a subject’s “life rights” also typically include a requirement that the subject participate in marketing efforts for the film, which can contribute significantly to the movie’s ultimate success. On the other hand, the subject will likely demand certain approval rights as Madizekela-Mandela has done, which may be too high a price for a filmmaker intent on telling the story in his own way.

In other cases where the filmmakers choose not to acquire certain life rights, they may instead adapt the screenplay to minimize the legal risk. Such was the case with the recent film The Runaways, the biopic about the 1970s girl punk band of the same name. The producers of The Runaways optioned Cherie Currie’s biography “Neon Angel: A Memoir of a Runaway,” and purchased the life rights of Currie, Joan Jett, drummer Sandy West, and producer Kim Fowler. (They also had music rights to hit songs needed for the movie, which is a topic for another post — oh wait, we already have one.) However, the filmmakers didn’t obtain the life rights of Runaways guitarist Lita Ford or of bassist-cum-Harvard-Law-graduate-and-entertainment-lawyer Jacqueline Fuchs (known with the Runaways as “Jackie Fox,” which I, for one, hope she has on her professional business cards). Because the filmmakers didn’t have Fuchs’ life rights, the bass player character was downplayed and her name changed to “Robin.” (Of course, while this tactic may work in the context of an ensemble, it’s hard to imagine how you could do that with a biopic about an individual — it would be impossible to do Winnie without Winnie.)

Prior to the film’s release, Fuchs sent demand letters to various people involved with the film, asking whether her name and likeness were going to be used and attempting to stop release of the film. But it was not Fuchs who ultimately filed legal action; instead, Jett filed a complaintagainst Fuchs in August 2009, alleging that she interfered with Jett’s business relationships by trying to have the film halted and demanding to see the script even though there was no character based on her. The lawsuit was dismissed by the New York court on jurisdictional grounds in February 2010 because Fuchs resides in Los Angeles, but this is nevertheless a cautionary tale that not only filmmakers, but also would-be subjects, have reason to be wary of potential lawsuits arising out of the making of biopics.

On the other hand, sometimes deals for life rights create more problems than they solve. Danny DeVito learned this lesson the hard way in connection with his planned feature film project Crazy Eddie, about Eddie Antar, the owner of that East Coast consumer electronics chain who coined the catchphrase “these prices are insaaaaaaaaane!” DeVito did seemingly the cautious thing and entered into a rights deal with Crazy Eddie. But this plan backfired when DeVito was contacted by a lawyer representing people wronged by Antar — evidently, Eddie’s particular breed of madness included stock fraud, $150 million in fines, and 6 years in prison (somewhere in the distance, a man was heard to yell, “these restitution payments are insaaaaaaaaane!”). The lawyer threatened that he would seek to put liens on the movie to pay the victims and prevent Antar from benefitting from the film. As a result, DeVito cut ties with Antar and the fate of the movie project remains an open question. DeVito acknowledges that, “we might have been better off if we hadn’t had contact, but there’s a thing inside you as a filmmaker where you don’t want to go around anyone as important as the main character.”

Whether a filmmaker chooses to proceed without a main character’s approval, to make him part of the team, or to downplay his role in the story, one thing is clear: all these choices come with pros and cons on the creative end, and with potential legal risks. It’s important for filmmakers to be sure they are willing to accept the risks that come with whatever path they choose. And when selecting the subject of your film, it’s helpful to think about whether you’ll get in a quagmire merely by virtue of who your subject is — in other words, your seemingly brilliant plan to enter into a life rights deal with the suddenly cash-strapped Bernie Madoff is probably D.O.A. Basically, when making a film about someone’s life story, it pays to be (bio)picky.

@Reel Busy – first of all, welcome to Law Law Land and thank you for reading. I can see from your name that you enjoy puns, which as you may have gathered is a prerequisite for reading this blog. Now for your question. If we assume that the nonfiction book provides an accurate retelling of historical events, is not defamatory and does not constitute an invasion of privacy, then both the book and the movie based on the book would be protected by the First Amendment. However, the mere fact that a producer bases his biopic on a nonfiction book will not automatically insulate the producer from a potential lawsuit by the subject of the biography / biopic. In your example of The Late Shift, Jay Leno’s manager Helen Kushnick sued the author of the biography on which the HBO film was based; I haven’t found any information suggesting that she sued producers of the film. But in the case of Winnie, Winnie Madikezela-Mandela is threatening the producers of the biopic notwithstanding the fact that their screenplay is based on the 2003 biography “Winnie Mandela: A Life” by Anne Marie du Preez Bedrob (and she doesn’t appear to have made similar threats toward Ms. Preez Bedrob). So regardless of whether a film is based on a nonfiction book or directly on the historical events on which the book is based, the same considerations set forth in my blog post apply.

I’m working on a biopic and have optioned the biography rights. The main character and all the secondary characters are deceased. Some of them have had biographies of their own, however I intend to use only information about them which is furnished in the book I’m using. In your opinion, do I need to contact the families of the secondary characters as well? They were all British and were participants in the second world war.